McMullen v. City Manager ( 1942 )

This is an appeal from a peremptory writ of mandamus, issued by the circuit court, requiring the managing officer of the city of Saginaw to appoint two members of the civil service commission regulating the employment of members of the fire department of the city, as provided by Act No. 78, Pub. Acts 1935 (Comp. Laws Supp. 1940 § 2730-1 et seq., Stat. Ann. § 5.3351 et seq.), and made operative in that city under its referendum provisions by a majority vote of the electors voting thereon December 2, 1935. The city manager refused to make the appointments, claiming the act abridges the right of municipal home rule, constitutes an unauthorized amendment of the city charter, represents class legislation, is not mandatory, its title does not sufficiently state its purpose, and its adoption was not by a majority of all the electors of the city.

The act is a long one, and provides that it shall not take effect in any city or village until approved by a majority of the electors voting thereon at an election at which the question of adoption of the act for that city is properly submitted. Under such provision a majority vote of such electors was sufficient to render the act effective. Title to the act, while short, is comprehensive of its purpose and sufficient. The city electorate, by adopting the act, has barred its administrative officers from questioning its validity on the grounds alleged. The referendum provision recognized a change could not be operative except at the will of a majority of the city electorate voting thereon.

The provision in section 1 of the act, reading — "Within thirty days after this act shall take effect (which means by referendum) there may be created a civil service commission in each city, village or municipality of any population whatsoever having a fire department, any of the members of which are full paid by said city," is to be read in connection with section 17a of the act:

"The foregoing provisions of this act shall not take effect in any city or village until approved by a majority of the electors voting thereon at an election at which the question of adoption of this act for that city or village is properly submitted. * * *

"If the majority of the qualified electors of such city or village vote in favor of the adoption of this act, then the provisions thereof shall be in full force and effect in such city or village and not otherwise."

This constituted the act effective in the city of Saginaw at the time of its adoption by a majority of such electors.

Section 2 of the act provides:

"This civil service commission shall consist of three members, two of whom shall be appointed by the person or group of persons who, acting singly or in conjunction, as a mayor, city manager, council, common council, or otherwise, is or are vested by law with power and authority to select, appoint, or employ the chief of a fire department in any city, village or municipality prior to the enactment of this act: * * * One for a period of six years from the date of his appointment, one for a period of two years from the date of his appointment, the other member of the commission shall be selected by the paid members of the fire department and he shall serve for a period of four years from the date of his appointment."

The paid members of the fire department made their selection of relator in this case but the city manager, by refusing to appoint the other two members of the commission, prevents operation of the act.

We must hold, as did the circuit judge, that the act is operative in the city of Saginaw and the provisions of the statute adopted by the city under the referendum command appointment of commissioners by the city.

The writ of mandamus was properly issued and the proceeding in the circuit court is affirmed, but without costs, a public question being involved.

CHANDLER, C.J., and BOYLES, NORTH, STARR, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred.